Must the prosecutor correct false testimony when defense counsel already knows the truth?

or when he refers to “Napue and its successors” in another red herring question, or when he refers to the “Napue-Giglio rule”, he is committing the error of conflating Mooney cases with Brady cases. And we say “error” because it’s not an arguable point. Chronology, not capable of dispute and entirely independent of the matters actually under dispute, demonstrates this absolutely.

Napue was 1959. Brady was 1963. Napue cannot possibly be a Brady case. Not to mention (again) that the whole Mooney line – that is, Mooney, Pyle, Alcorta and Napue – are cited in Miller v. Pate in 1967, making Miller the last Mooney case.

And Miller doesn’t cite Brady.

That is, Miller proves, beyond all rational questioning, that the Brady line of cases and the Mooney line of cases are distinct, even if related, because it post-dates Brady and doesn’t cite it even though it cites all the previous Mooney cases.

What about Giglio, then?

Giglio was 1972. Giglio cites Napue due to the factual similarity involving the withholding of impeachment evidence, and the impeachment evidence being a deal having been made with a prosecution witness. But that doesn’t make Giglio one of Napue’s “successors”. In fact, Napue was one of Mooney’s successors, and has no “progeny” of its own.

Emphasis, as we say, supplied. You see, the proper distinction between the Mooney line of cases and the Brady line is that good or bad faith is irrelevant in the latter, but the very essence of the former. On that particular point the two lines of cases could not be further apart. That is, that particular point is the very thing that distinguishes them. And you don’t have to take our word for it (see pp. 47-49).

So, it’s not as if the Giglio court was really confused about the difference between Mooney and Brady, they just expressed themselves poorly in the first paragraph of the opinion. After reading the rest of the opinion, no person of reasonable intelligence could maintain in good faith that Giglio was anything other than…a Brady case.

But if you graft Brady onto Napue – which is a Mooney case – then you graft Brady’s limitations onto Napue as well, and of course by extension to Mooney also. Then you have limited Mooney by stealth. And that’s what Judge Easterbrook is trying to do in Long v. Pfister, and what Justice Rehnquist tried to do in Bracy and Albright, and what the nation’s prosecutors (as a group, not every single one of them, of course) have been trying to do for decades. This effort has produced such lamentable results as Albright v. Oliver, a plurality opinion from a fractured SCOTUS where Justice Rehnquist basically sneaks his Mooney limiting agenda into a footnote.

And here’s what limiting Mooney means: the government can lie and cheat to get a criminal conviction and it doesn’t violate due process.

We do not believe such a result is tolerable in a free society. And we don’t know how any sane person could disagree. But even if some miscreant prosecutors, police and judges (repeat ourselves?) do disagree – believing perhaps that a little bit of lying and cheating is acceptable if it doesn’t affect the outcome, or some such – they should argue the point honestly and straightforwardly, taking the position that they think Mooney and its progeny were wrongly decided.

We have to question that. Seriously. He may have been a smart boy at one time, but undergraduate work at the Kremlin on the Crum must have dulled his wits considerably.

And making matters worse he, like so many federal appeals court judges, has never tried a case. And this is another situation where that matters. Very much.

But let’s look closely at the facts presenting the issue. Long is identified as the perp by a total of four witnesses. Two recant prior to trial and never re-recant. Irby recants but then re-recants and then at trial, called by the prosecution, falsely denies ever having recanted, and the prosecution knew that this testimony was false.

If you can follow all that.

The prosecution never admitted that her witness had lied and never corrected it, although it appears that the lies were amply rebutted.

Due process violation?

It appears to explicitly and squarely run afoul of Napue v. Illinois, but Judge Easterbrook says that’s not obvious to him or his colleagues in the majority. He says that Napue was silent on such subsidiary questions as these:

• Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?

• Does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?

• Does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

The dissent points out that Napue itself substantially answers these questions, but the real issue here is: where do these questions come from? Why are they questions at all?

Let’s play the same game as Judge Easterbrook in a different setting. The rule is, we don’t admit into evidence at criminal trials confessions that are coerced, and we confront a case where the cop held an unloaded gun to the head of the suspect and threatened to shoot him, and then after the confession apologized for his behavior. So, following Judge Easterbrook’s methodology:

Is it really coercion when the gun isn’t actually loaded?

If it is, is the coercion cured when the cop apologizes?

The cases forbidding the admission of coerced confessions haven’t spoken to these questions, so they haven’t been clearly resolved by the SCOTUS and so habeas relief must be denied.

See how easy that was?

The point being, any idiot can come up with stupid subsidiary “questions” that undercut any proposition of any kind. This is limited only by the how dimwitted the imagination and how strong the desire to evade the result the proposition requires. With Judge Easterbrook, we think “very” and “very” about covers both of those.

Long is an en banc opinion, decided October 20th, and reaching the opposite result from the three judge panel that decided the case earlier. All of this is quite rare and enhances the likeliood of SCOTUS review. The loser has 90 days from October 20th to file a cert petition. That would seem likely to occur, since Kirkland & Ellis has taken up Paysun Long’s plight.

Well, we like the issue. But we don’t like the vehicle. And while we haven’t read the briefs – though we may do that soon, too – we don’t like the way the argument goes.

Napue, like all of the Mooney cases with the possible exception of Miller v. Pate,* is about deliberate government lying and cheating. Not lying and cheating by a government witness in and of itself but rather the government’s participation in the lying and cheating and then “obtaining a conviction” thereby. It’s a clear cut due process violation, and that’s one of those very few “bright-line” rules. Or at least it has been.

Judges like Easterbrook have been trying to blur that line for a long time. Sometimes, as Easterbrook is doing here, it’s by generating artificial questions that the SCOTUS hasn’t addressed (because they don’t occur to normal and intelligent people in the first place) and pretending there’s some sort of room to get around the rule. Other times, they’ve had to misrepresent the law, like Justice Rehnquist did in Bracy and Albright. But one of the main tactics has been to conflate Mooney cases and Brady cases.

We have to confront Judge Easterbrook’s and Justice Rehnquist’s – let’s face it – agenda driven falsifications and dissembling directly. We must clarify and restore the law, not move to a less pernicious confusion about it and hope for the best. The Mooney line of cases, including Napue, has never been qualified or limited, and that’s very much unlike the Brady line of cases. Giglio is one of the latter, and Napue is one of the former.

We don’t think Long will address the Mooney-Brady distinction, and for that reason it’s not likely to clarify much even if the SCOTUS takes it up.

*We are probably all by ourselves on this, but nevertheless, we think Miller extends the principle of Mooney to situations and results that are too absurd or stupid to tolerate in a rational system of justice. Kind of like Judge Easterbrook’s en banc opinion under review here!

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We have been constrained to point out, on numerous occasions, that the only import of the Giglio case is that prosecutors cannot circumvent Brady requirements by handing off the trial to a different prosecutor. That is, the whole prosecutor’s office is bound by Brady, not just the one lawyer who tries the case.

Beyond that, Giglio is a Brady case – it post dates Brady; Napue is not a Brady case – it pre-dates Brady.

There is no “Napue-Giglio rule”, or at least never has been until Long v. Pfister came out of Judge Easterbrook’s pen, writing for the majority of an en banc 7th circuit panel.

We’ll have to revisit this highly problematic case again. Soon. It may be SCOTUS bound.

But briefly, before we leave the topic for now, we can’t help notice that Judge Easterbrook’s opinion is way behind the curve at least in one way: we had a row with a commenter over the “unknown to the defense” requirement over two years ago.

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This case may not be one of the few that gets Supreme Court review (“cert grant”) this term. But it’s a good bet.

Why? It’s a capital (death penalty) case. The SCOTUS likes capital cases because they seem to believe that criminal matters are generally not worthy of their attention unless someone is going to die if they don’t take a look.

We’d like to say we are kidding about that. But we’re not.

Second, although the Petitioner is not the government – and that, dear readers, is the only contrary indicator to a cert grant here – he is represented by one of the bestest firms, Sidley Austin. Third, SCOTUS requested the record, rescheduled the case once and has now “relisted” it three times. These are all unambiguous indicators of SCOTUS interest, and are strongly associated with cert grants.

Oh, one more contrary indicator, though: no amicus briefs.

On that last point, we think it’s particularly telling here. Why?

Here’s the issue, about which there is disagreement in the federal circuit courts of appeal and the state supreme courts: when a person convicted at trial raises an “ineffective assistance of counsel” claim in a collateral proceeding but does not produce his allegedly ineffective trial counsel as a witness, does that result in a conclusive presumption that there was a legitimate strategic reason for counsel’s alleged deficiencies and therefore no claim for ineffective assistance?

And here’s the nature of the dysfunction: who cares? The courts that hold ‘yes’ are evidently reasoning that there must be a legit strategic reason, otherwise counsel would have an obligation to his client to say he didn’t have one, and thus the only basis for not doing so would be that he can’t say that because it would be perjury (We assume these courts don’t apply the conclusive presumption rule where the trial counsel is dead or unavailable).

The courts that hold ‘no’ – the far, far better rule in our view, not that that matters – would rather let the prisoner make his case however he can, with or without the participation of his trial counsel. Before they deny relief anyway.

The overwhelming majority of claims for post conviction relief, that is – north of 99% – are denied. Those few that are granted will often have an ineffective assistance of counsel claim involved, but how often will the conclusive presumption rule determine the outcome? Practically never. You’re talking about a handful of cases per decade, nationwide. If that. You could make a good argument that this particular fine point will never make a difference in any case.

The SCOTUS and its echo chamber have completely lost touch with reality. The problems in our criminal justice system are much more basic and fundamental than Mr. Reeves’ problem, but his case is receiving serious consideration for reasons that are both, and at once, absurdly esoteric and dismally shallow.

Reeves, in other words, is a SCOTUS case that is entirely the product of an irrelevant discussion taking place among death penalty abolitionists and the SCOTUS echo chamber. These discussions have become so insular that the checklist criteria for selecting cases “worthy” of SCOTUS review have supplanted the more basic consideration of whether the case genuinely has a wide enough significance to warrant a plenary SCOTUS review that is granted only about 1% of the time.

Put another way, this is the nearly complete triumph of form over substance.

Update: Denied. Apparently the majority may have agreed that this issue is too seldom presented, to say nothing of dispositive. Not that we’re happy about it. As Justice Sotomayor points out in dissent, this means Mr. Reeves faces execution. And frankly, the procedural history seems to indicate that the whole thing was deliberately constructed by death penalty abolitionists to throw a wrench into the death penalty machinery; that is, if you read the dissent, the defense lawyers at trial made a motion to get the funding for a neuropsychologist, the motion was denied but then granted later on a reconsideration motion. Then the defense did not produce the much fought over expert at the sentencing hearing. Another possibility, of course, is that they didn’t trust the trial judge or the jury to accept the mitigating evidence under any circumstances and figured having the issue for an appeal was a better shot than trusting the trial judge and jury, and it looks like they were probably right about that: three relists at the SCOTUS means they came close.

Habeas. It’s one of those “writs” that hearken back to our common law roots, when every time you went to a higher court to ask for some kind of relief your request, and the answer, was in the form of a writ. There were several kinds of writs and they covered everything; or perhaps more accurately, everything had to be put in terms of the writs to be cognizable.

Certiorari, Prohibition, Mandamus, Habeas Corpus, Coram Nobis.

They’ve all been more or less abolished now. Or maybe “codified” is a better word, because legislatures have somehow prescribed all the procedural rules and forms of pleadings for courts, and no one appears to have noticed the separation of powers problem there, either.

Except in the SCOTUS, that is. In the SCOTUS, interestingly, the ancient writs are all there is.

For the most part the writs were explicitly abolished. Except habeas corpus, which has a kind of fame and popular resonance, the vulgar public being vaguely aware that it’s known as the “Great Writ” and it’s in the constitution and it can’t be done away with because that’s a Very Bad Thing.

So habeas corpus has never been explicitly abolished; rather, it has been abolished in practice. And whereas our ancestors appeared to have presumed that the threat to the Great Writ would come from a tyrannical executive, the real threat turned out to come from the courts themselves.

So here’s how it works. If you’ve got a client who is unlawfully incarcerated and there’s a federal law issue, constitutional or otherwise, and it’s not a death penalty case, you can go ahead and bring a habeas corpus petition in a federal district court but it will be denied, because the most recent study of the matter found that out of a sample of 2384 of such cases meaningful relief was granted in only 14 – .6% of the time. Effectively, federal habeas corpus petitions are never granted in non-death penalty cases.

After it’s denied by the district court there is no right to appeal, so you can’t appeal unless you get permission with a “certificate of appealability”. The district court can grant that permission but, again, district courts never do, even though ostensibly permission to appeal should be granted if there is any arguable issue, and in truth there almost always is.

Moving on, though.

When the district court denies permission to appeal, you can ask the federal appeals court to grant permission, but they never do either. Nationwide, such permission is denied 92% of the time. In the 2nd circuit, it’s denied over 98% of the time.

So when the 2nd circuit grants a certificate of appealability, it’s a big deal, since they effectively never do. But lo, they did just that. Just recently.

Yet far from being an encouraging development, this is just depressingly more of the same. The habeas petitioner is a billionaire. He’s represented by the whitest of the white shoe law firms.

Why depressing?

Because the law of federal habeas corpus in the United States in the 21st century is, on the one hand, incoherent: federal constitutional problems with criminal convictions warranting habeas relief are deemed not to exist to any significant degree. Unless the death penalty is involved, where they somehow become so abundant that habeas relief is granted around 50% of the time. It should go without saying that this cannot possibly be true.

The courts are vehicles of the compulsion of human beings, in both civil and criminal matters. This is tolerable only if the compulsion is fairly and even handedly applied, or at least there is a commitment to doing so. In the absence of such a commitment, the courts become odious and morally repulsive.

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We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.

Ugh. This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors. That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.

Accordingly, we propose the following should be added to New York’s constitution in the section on the judiciary:

“Any attorney who has served in the office of a District Attorney or the Attorney General shall be disqualified from holding any judicial office for a period of ten (10) years after the completion of any such service.”

It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio. It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.

And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold: that is, former prosecutors completely dominate the judicial branch. This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.

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Since arguments are the very warp and woof of our supposedly “adversarial” system of justice, such a claim on the part of one of the system’s participants represents a thoroughgoing loss of faith in the system itself.

Ugh, as we often lament over here at LoS.

It is not, of course, that there aren’t some arguments that are indeed “cheap”, in the sense that they are invalid, in some cases even to the point of being silly. Or even self-contradictory. Indeed we ourselves have encountered, just recently, a series of such arguments. One would think that the opposing and far more cogent – indeed correct – arguments would therefore prevail and all would be well, but that’s not how it goes.

Thus the effect of the facile cynicism embodied in the statement “arguments are cheap”: there is no difference between correct and incorrect arguments. They’re all “cheap”, and wrong prevails over right.

What considerations drive such an outcome, an outcome where the clearly correct is rejected in favor of the clearly incorrect? Well, it’s kind of hard to say, isn’t it? Presumably it is something “expensive” as opposed to the valueless import of a valid argument.

But, expensive in what sense? To whom?

We can hazard a guess. There are institutional concerns, surely. They have an importance beyond the outcome in this or that particular case. The decision makers do not make their decisions in isolation from their stewardship of the institutions that have selected them to make the decisions in the first place.

Accordingly, it is not really fair to describe our system of justice as “adversarial”, because the contentions of the parties to a dispute, their arguments for or against, do not drive – indeed, do not even really influence – the outcome.

Such a system is much better described as “administrative”. Administrative adjudication of disputes is a characteristic not of the Anglo-American legal tradition, but rather of communist countries.

That’s one problem, then.

The corollary, just as important and just as large, is that this reality – so obviously and profoundly alien to the country’s traditions – cannot be openly acknowledged. We must retain a pretense that we have not abandoned our heritage.

But we have.

The net result is that we go through an elaborate series of motions (literally and figuratively) that, while important in terms of addressing the corollary problem are in fact meaningless.

Which is to say, all of that effort serves an odious purpose – deceiving ourselves and others – that should not be undertaken at all, properly speaking.